Federal court shoots down New Bedford's fishing appeal

NEW BEDFORD — A federal appeals court Wednesday swept aside a lawsuit by this city and Gloucester challenging the new system of regulating the Northeast fishery.

Comment

By STEVE URBON

southcoasttoday.com

By STEVE URBON

Posted Nov. 29, 2012 at 12:01 AM
Updated Nov 29, 2012 at 10:54 AM

By STEVE URBON

Posted Nov. 29, 2012 at 12:01 AM
Updated Nov 29, 2012 at 10:54 AM

» Social News

NEW BEDFORD — A federal appeals court Wednesday swept aside a lawsuit by this city and Gloucester challenging the new system of regulating the Northeast fishery.

The 1st U.S. Circuit Court of Appeals struck down every one of a number of arguments the cities and their co-plaintiffs in the industry made in their appeal.

The court upheld a 2011 lower court decision in the suit brought by the two ports as well as fishermen and fishing groups. Broadly speaking, the court ruled that the government stayed within the letter and spirit of the 1976 Magnuson-Stevens Act, which was designed to end overfishing in the Northeast.

Mayor Jon Mitchell said late Wednesday that he had not seen the ruling but was disappointed. "We'll take our time now to go through the opinion and see what our next steps are," he said.

"The point of pursuing the lawsuit was to help ensure that regulations that NOAA comes down with are fair and consider the very real ramifications that they might have on the fishing industry," Mitchell said.

"We will continue to make that point in other venues, including Congress," he said.

Former mayor Scott Lang said Wednesday night that he believes the city's arguments were valid and well presented. But he acknowledged that overturning government regulators' decisions is hard to do.

"It's extremely difficult to flip it in the courts," Lang said.

He added that he was pleased that the court at least took time in its more than 60-page ruling to sift through the arguments thoughtfully, if narrowly.

Attorney Pamela Lafreniere, who represents fishermen and worked on the lawsuit from the beginning along with the city, declined to comment.

The city's attorney, John Markey, could not be reached for comment Wednesday night.

From the outset, the fishing industry's fear was that the new sector management system would put many boats out of business and lead to consolidation of the fleet into bigger boats with multiple permits purchased from smaller ones.

That, in fact, turned out to be the case. But the court ruled that contrary to the lawsuit, the New England Fishery Management Council did indeed adequately take into account the economic effects.

It said that Magnuson-Stevens, however, anticipates that economic harm doesn't outweigh the interests of conservation.

Magnuson-Steven's "advisory guidelines make clear that these obligations are subordinate to the (act's) overarching conservation goals," said the court.

The dispute is over Amendment 16 to the Magnuson-Stevens Act, which put in place "catch shares" and a fishing cooperative system for fishing boats to work in groups to manage what they are allowed to catch.

The law was implemented in May 2010 and the lawsuit was filed that June.

The cities charged in their lawsuit that what the fishing regulators put in place was a quota system in thin disguise. That would have required a two-thirds referendum approval of the plan by the fishing region affected.

The court also ruled that the government acted within its authority, and conceded that a challenge to that is difficult under law.

"The Secretary's judgments here were derived from the record, rational, and not based on any error of law," said the ruling.